CHAPTER V.
THE STATE.
§ 36. The Nature and Essential Functions of the State.
A complete analysis of the nature of law involves an inquiry into the nature of the state, for it is in and through the state alone that law exists. Jurisprudence is concerned, however, only with the elements and first principles of this matter. An exhaustive theory of political government pertains not to jurisprudence, but to the allied science of politics. From the lawyer nothing more is required than such an understanding of the essential nature of the state, as is sufficient and necessary for the establishment of sound juridical theory.
A state or political society is an association of human beings established for the attainment of certain ends by certain means. It is the most important of all the various kinds of society in which men unite, being indeed the necessary basis and condition of peace, order, and civilisation. What then is the essential difference between this and other forms of association? In what does the state essentially differ from such other societies as a church, a university, a joint-stock company, or a trade union? The difference is clearly one of function. The state must be defined by reference to such of its activities and purposes as are essential and characteristic.
But the modern state does many things, and different things at different times and places. It is a common carrier of letters and parcels, it builds ships, it owns and manages railways, it conducts savings banks, it teaches children, and feeds the poor. All these cannot be of its essence. It is possible, however, to distinguish, among the multitudinous operations of government, two which are set apart as primary and essential. These two are war and the administration of justice. The fundamental purpose and end of political society is defence against external enemies, and the maintenance of peaceable and orderly relations within the community itself. It would be easy to show by a long succession of authorities that these two have always been recognised as the essential duties of governments. The Israelites demanded a king, that he “may judge us, and go out before us, and fight our battles;”[[94]] and this conception of the primary end and aim of sovereignty obtains recognition still as true and adequate. Leviathan, as Hobbes[[95]] tells us, carries two swords, the sword of war and that of justice. This is the irreducible minimum of governmental action. Every society which performs these two functions is a political society or state, and none is such which does not perform them. How much activity in other directions may be profitably combined with them is a question with which we are not here concerned. We are dealing with the definition, and therefore with the essence, not with the accidents of political society.[[96]]
It is not difficult to show that war and the administration of justice, however diverse in appearance, are merely two different species of a single genus. The essential purpose of each is the same, though the methods are different. Each consists in the exercise of the organised physical force of the community, and in each case this force is made use of to the same end, namely, the maintenance of the just rights of the community and its members. We have already seen that in administering justice the state uses its physical power to enforce rights and to suppress and punish wrongs. Its purpose in waging war—that is to say, just war, which is the only kind which can be regarded as an essential form of state activity—is the same. These two primary functions are simply the two different ways in which a political society uses its power in the defence of itself and its members against external and internal enemies. They are the two methods in which a state fulfils its appointed purpose of establishing right and justice by physical force.
What, then, is the essential difference between these two functions? It lies apparently in this, that the administration of justice is the judicial, while war is the extrajudicial use of the force of the state in the maintenance of right. Force is judicial, when it is applied by or through a tribunal, whose business it is to judge or arbitrate between the parties who are at issue. It is extrajudicial when it is applied by the state directly, without the aid or intervention of any such judge or arbitrator. Judicial force involves trial and adjudication, as a condition precedent to its application; extrajudicial force does not. Judicial force does not move to the maintenance of rights or the suppression of wrongs, until these rights and wrongs have been authoritatively declared and ascertained by the formal judgment of a court. The primary purpose of judicial force is to execute judgment against those who will not voluntarily yield obedience to it. Only indirectly, and through such judgment, does it enforce rights and punish wrongs. But extrajudicial force strikes directly at the offender. It recognises no trial or adjudication as a condition of its exercise. It requires no authoritative judicial declaration of the rights protected or of the wrongs punished by it. When a rebellion or a riot is suppressed by troops, this is the extrajudicial use of force; but when, after its suppression, the rebels or rioters are tried, sentenced, and punished by the criminal courts, the force so used is judicial. To shoot a man on the field of battle or at a barricade is war; to shoot him after capture and condemnation by a court martial is the administration of justice.[[97]]
In addition to the essential difference which we have just noticed, there are several minor and unessential differences, which are commonly, though not invariably present. The chief of these are the following:
1. Judicial force is regulated by law, while the force of arms is usually exempt from such control. Justice is according to law; war is according to the good pleasure of those by whom it is carried on. Inter arma leges silent is a maxim which is substantially, though not wholly, true. The civil law has little to say as to the exercise by the state of its military functions. As between the state and its external enemies, it is absolutely silent; and even as to the use of extrajudicial force within the body politic itself, as in the suppression of riots, insurrections, or forcible crimes, the law lays down no principle save this, that such force is allowable when, and only when, it is necessary. Necessitas non habet legem. Within the community the law insists that all force shall be judicial if possible. This protection against extrajudicial force—this freedom from all constraint save that which operates through the courts of law and justice—is one of the chief privileges of the members of the body politic. We accept it now as a matter of course, but in older and more turbulent days it was recognised as a benefit to be striven for and maintained with anxious vigilance.[[98]]
2. In the second place judicial force is commonly exercised against private persons, extrajudicial force against states. It is clear, however, that this is not necessarily or invariably the case. It is not impossible that one state should administer justice between two others, or between another state and itself. And on the other hand, it may wage war with its own subjects, or with pirates or other persons who do not constitute a political society.